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EXHIBIT 10.9
TRINITY INDUSTRIES, INC.
DEFERRED PLAN FOR DIRECTOR FEES
(as amended)
THIS PLAN,
made and executed at Dallas, Texas by Trinity Industries,
Inc., a Delaware corporation (the
"Company"), is being established primarily for
the purpose of providing to members of the
Board of Directors of the Company the
ability to defer receipt of all or part of
their compensation as a Director.
I.
DEFINITIONS
Whenever used herein, the following terms shall have the meaning
set
forth below:
(a)
"Account" means the
separate memorandum account maintained by
the Company for each Director who elects to participate in the
Plan.
(b)
"Adjustment Date" means the last day of each calendar quarter
and such other dates as the Administrative Committee in its
discretion may prescribe.
(c)
"Administrative Committee" means a committee composed of at
least three individuals appointed by the Compensation
Committee of the Board of Directors of the Company to
administer the adjustment of participant accounts as provided
herein, each of whom shall serve in such office until a
successor is appointed by the Compensation Committee or until
such person's death, resignation or removal by the
Compensation Committee.
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(d) "Annual
Fee" means the retainer and meeting fees paid to a
Director for services rendered as a member of the Board of
Directors of the Company, including fees for services on a
committee, for the Annual Period.
(e) "Annual
Period" means the calendar year.
(f) "Board of
Directors" means the Board of Directors of the
Company.
(g) A "Change
of Control" shall be deemed to have occurred if the
event set forth in any one of the following paragraphs shall
have occurred:
(I) any Person
is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company
(not including in the securities beneficially owned
by such Person any securities acquired directly from
the Company or its affiliates) representing 30% or
more of the combined voting power of the Company's
then outstanding securities, excluding any Person who
becomes such a Beneficial Owner in connection with a
transaction described in clause (i) of paragraph
(III) below; or
(II)
the following individuals cease for any reason to
constitute a majority of the number of directors then
serving: individuals who, on May 6, 1997, constitute
the Board of Directors and any new director (other
than a director whose initial assumption of office is
in connection with an actual or threatened election
contest, including but not limited to a consent
solicitation, relating to the election of directors
of the Company) whose appointment or election by the
Board of
Directors or nomination for election by the
Company's stockholders was approved
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or recommended by a vote of at least two-thirds (2/3)
of the directors then still in office who either were
directors on May 6, 1997, or whose appointment,
election or nomination for election was previously so
approved
or recommended; or
(III)
there is consummated a merger or consolidation of the
Company or any direct or indirect subsidiary of the
Company with any other corporation, other than (i) a
merger or consolidation which would result in the
voting securities of the Company outstanding
immediately prior to such merger or consolidation
continuing to represent (either by remaining
outstanding or by being converted into voting
securities of the surviving entity or any parent
thereof) at least 60% of the combined voting power of
the securities of the Company or such surviving
entity or any parent thereof outstanding immediately
after such merger or consolidation, or (ii) a merger
or consolidation effected to implement a
recapitalization of the Company (or similar
transaction) in which no Person is or becomes the
Beneficial Owner, directly or indirectly, of
securities of the Company (not including in the
securities Beneficially Owned by such Person any
securities acquired directly from the Company or its
Affiliates other than in connection with the
acquisition by the Company or its affiliates of a
business) representing 30% or more of the combined
voting power of the Company's then outstanding
securities; or
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(IV)
the stockholders of the Company approve a plan of
complete
liquidation or dissolution of the Company or
there is consummated an agreement for the sale or
disposition by the Company of all or substantially
all of the Company's assets, other than a sale or
disposition by the Company of all or substantially
all of the Company's assets to an entity, at least
60% of the combined voting power of the voting
securities of which are owned by stockholders of the
Company in substantially the same proportions as
their ownership of the Company immediately prior to
such sale.
For purposes hereof:
"Affiliate" shall have the meaning set forth in Rule 12b-2
promulgated under Section 12 of the Exchange Act.
"Beneficial Owner" shall have the meaning set forth in Rule
13d-3 under the Exchange Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
"Person" shall have the meaning given in Section 3(a)(9) of
the Exchange Act, as modified and used in Sections 13(d) and
14(d) thereof, except that such term shall not include (i) the
Company or any of its subsidiaries, (ii) a trustee or other
fiduciary holding securities under an employee benefit plan of
the Company or any of its Affiliates, (iii) an underwriter
temporarily holding securities pursuant to an offering of such
securities, or (iv) a corporation
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owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their
ownership of stock of the Company.
(h)
"Competitive Business Entity" means any business,
proprietorship, partnership, corporation engaged in business
activities in the same or similar markets in which the
Company, its subsidiaries, and affiliates operate or plan to
operate.
(i) "Director"
means a member of the Board of Directors.
(j) "Plan"
means the Trinity Industries, Inc. Deferred Plan for
Director Fees as set forth in this instrument and as it may
hereafter be amended from time to time.
(k)
"Termination Date" means the date upon which a Director ceases
to be a member of the Board of Directors.
II.
PLAN DESCRIPTION
A Director may elect to defer receipt of all or a specified part of
his
or her Annual Fee. The Company will
maintain an Account for each participant
into which the deferred portion of the
Annual Fee will be credited on the date
the Director would otherwise be entitled to
receive such fee. Sums credited to
the Account will accrue an interest
equivalent from the date they are credited
at a rate equal to the annual LIBOR rate
plus 6 points, as of the first business
day following each Adjustment Date. The
accrued interest equivalent shall be
credited to the Account on each Adjustment
Date, and shall thereafter be subject
to subsequent accruals of an interest
equivalent.
In lieu of having the Account credited with an interest equivalent
as
provided in the preceding paragraph, a
Director may elect to have the deferred
portion of his or her Annual
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Fee treated as if invested in units of
Common Stock of the Company ("Stock
Units"). Stock Units will be deemed to be
acquired on the first day of each
quarter for the deferred portion of the
Annual Fee credited to the Account in
the prior quarter. Dividend equivalents in
the form of additional Stock Units
will be credited to the Account as
